Thus far conditions have been classified as precedent, subsequent and concurrent. Looking at conditions from a different point of view, they may be classified as express, implied in fact and implied in law. A condition is said to be express when it is created by language definitely set out in the oral or written agreement. When a condition is implied in fact it is based upon actual, but unexpressed, intention of the parties. When a condition is implied in law, it is not based upon an actual and unexpressed intention of the parties, but it is based upon a conviction of the court that in order to do justice between the parties the contract must be dealt with just as though it did provide for such a condition. The two kinds of conditions, those implied in fact and those implied in law, shade gradually into one another so that it is difficult to determine in some cases upon which theory the court proceeded in dealing with. them. There is a tendency recognizable in the decisions to call a condition one implied in fact when it would be more proper to refer to it as a condition implied in law. Conditions implied in law are sometimes called constructive conditions. The distinctions between the two kinds of implied conditions are not in most cases of great importance, because their legal effects will be substantially the same. There is this difference: where a condition is implied in law, the courts are more likely not to insist upon its literal performance to the same extent as in the case where it is implied in fact. When a condition is implied in fact it is to be given the same legal effect as an express condition, because parties are left free, within very broad limits, to enter into such contracts as they choose, and when they have expressed their intention, whether expressly or impliedly, this intention is to be given effect. It will be noticed that in the above very brief discussion of conditions we have not attempted to consider what words or conduct. descriptive of acts will be regarded as creating conditions. We have but briefly touched upon their legal effect. We have merely attempted to create a few concepts, mental receptacles so to speak, into which we may put these ideas as we find them developed in the cases. SECTION 4.—PERFORMANCE ON TIME AS A CONDITION ADAMS et al. v. GUYANDOTTE VALLEY RY. CO. et al. (Supreme Court of Appeals of West Virginia, 1908. 64 W. Va. 181, 61 S. E. 341.) Bill to cancel a contract by P. C. Adams and others against the Guyandotte Valley Railway Company and another. Decree for defendants, and complainants appeal. * * Poffenbarger, P. The [plaintiff] landowners agreed to * lease *** for coal mining or coal coking purposes any part of the land that lies upon or is drained by the stream emptying into the Guyandotte river to any party or parties presented by the railway company or its assigns, with all such privileges as are necessary and proper for the conduct of mining operations. * * * The covenants and conditions imposed upon the railway company were two in number, only the first of which is important, which reads as follows: "It will cause the said railway to be commenced within one year and completed and in operation opposite the said lands of the parties of the first part by the 1st of January, 1903; and it is understood that, if the said railway is not completed and in operation by the said date, this agreement shall no longer be binding upon the parties hereto." * * ** * * * * * * Failure of the railway company to comply with the condition having been shown, the propriety of the remedy invoked by the plaintiffs is dependent upon the character of that condition. If it is a condition. subsequent, noncompliance with which works a forfeiture of a vested right or estate a court of equity will not enforce the forfeiture. It will leave the parties to their legal remedies. * * *If it is a condition precedent, one which it was incumbent upon the railway company to perform before any interest, right, title or estate vested or could vest, or, in other words, the performance of which operated to vest the title, or was the means by which the title was to be acquired, not defeated, after acquisition in some other way, equity has jurisdiction to cancel the contract by way of removing a cloud from the title to the land, if it constitutes a cloud thereon, for this can be done without destroying any right under it. *That failure to perform a condition precedent prevents the vesting of title or right is elementary law. No authority need be cited for the proposition that the completion and operation of the railroad opposite the land is a condition precedent. *That was the substance of the thing which it was stipulated the railway company should do. It constituted the whole consideration for all the covenants and agreements made by the other parties. This would necessarily be the conclusion if the terms of the contract did not indicate it, but they do. All the stipulations in favor of the railway company are clothed in prospective terms. * There is no language in the contract importing a grant of any right in præsenti. * * *The only matter about which there could be a doubt is whether time is made an essential part of the condition. In the construction of contracts this is often a perplexing inquiry, but the doubt generally arises in those instances in which the parties have not, by any express terms of the contract, indicated the essentiality of the time specified. Then resort must be had to the nature of the instrument, its subjectmatter, the evident purpose had in view, the prior and subsequent conduct of the parties, and the immediate context of the phrase or clause specifying time. The form and legal effect of the stipulation also have important bearing upon the question. In such cases, the inquiry is for the intention of the parties, and it must be gathered from the whole instrument and the surrounding circumstances. * * ** * Under the practically unlimited right and power of parties to make such contracts as they see fit to make, and bind themselves to such extent and in such manner as they please, they may make performance of any covenant or condition, however unimportant or trivial in character, a condition precedent. Though time of performance may be comparatively or really unimportant in a practical sense, they have the power to stipulate with one another that failure to observe it shall be fatal and put an end to the contract. * * * The stipulation under consideration here relates to a condition, the * nonperformance of which may inflict injury not easily or readily susceptible of ascertainment or compensation. It is not like failure to pay money on a specified day. * * In the event of failure to perform within the time stipulated, the gravity of the injury would depend upon the period of delay. Delay of one month or six months. might not be serious; but, if such delay is permissible, why not a delay of one year, five years, or ten years? How could the court fix a time within which the delay would be deemed innocuous, and beyond, fatal? * * * How can we say that this did not signify intention to make the time specified an essential element of the condition? They have solemnly said in their written agreement, not only that the road should be completed and operated opposite the land, but also that it should be completed and operated by the 1st day of January, 1903, and that failure to comply within that time should put an end to the contract. In this final clause the date of completion is referred to as well as the requirement of completion. * * * Our conclusion is that, by the express terms of the contract, time is made of the essence thereof. As the road was not built within that time, no title vested, nor can it ever vest under this contract. Wherefore the agreement now amounts to nothing more than a cloud upon the title of the plaintiffs, and the court should have canceled it as such. * * * BECK & PAULI LITHOGRAPHING CO. v. COLORADO MILLING (United States Circuit Court of Appeals, Eighth Circuit, 1892. 52 Fed. 700, 3 C. C. A. 248.) SANBORN, Circuit Judge. The ground on which it is sought to sustain the instruction of the court below to return a verdict for the defendant in this case is that the plaintiff failed to tender or deliver the articles contracted for to the defendant, at Denver, until six or eight days after the expiration of the year, that the plaintiff did not therefore furnish them "in the course of the year," and that this failure justified the defendant in repudiating the contract, and refusing to pay any part of the contract price. It is a general principle governing the construction of contracts that stipulations as to the time of their performance are not necessarily of their essence, unless it clearly appears in the given case from the express stipulations of the contract or the nature of its subject-matter that the parties intended performance within the time fixed in the contract to be a condition precedent to its enforcement, and, where the intention of the parties does not so appear, performance shortly after the time limited on the part of either party will not justify a refusal to perform by the party aggrieved, but his only remedy will be an action or counterclaim for the damages he has sustained from the breach of the stipulations. In the application of this principle to the cases as they have arisen, in the promulgation of the rules naturally deduced from it, and in the assignment of the various cases to the respective classes in which the stipulation as to time of performance is, or is not, deemed of the essence of the contract, the controlling consideration has been, and ought to be, to so decide and classify the cases that unjust penalties may not be inflicted, nor unreasonable damages recovered. Thus, in the ordinary contract of merchants for the sale B.& B.BUS.LAW-11 and delivery, or the manufacture and sale, of marketable commodities within a time certain, it has been held that performance within the time is a condition precedent fo the enforcement of the contract, and that a failure in this regard would justify the aggrieved party in refusing performance at a later day. * * * This application of the general principle commends itself as just and reasonable, on account of the frequent and rapid interchange and use of such commodities made necessary by the demands of commerce, and because such goods, if not received in time by the vendee, may usually be sold to others by the vendor at small loss, and thus he may himself measure the damages he ought to suffer from his delay by the difference in the market value of his goods. On the other hand, it has been held that an express stipulation in a contract for the construction of a house, that it should be completed on a day certain, and that, in case of failure to complete it within the time limited, the builder would forfeit $1,000, would not justify the owner of the land on which the house was constructed in refusing to accept it for a breach of this stipulation when the house was completed shortly after the time fixed, nor even in retaining the penalty stipulated in the contract, but that he must perform his part of the contract, and that he could retain from or recover of the builder the damages he sustained by the delay and those only. * * This application of the general rule is equally just and reasonable. The lumber and material bestowed on a house by a builder become of little comparative value to him, while they are ordinarily of much greater value to the owner of the land on which it stands, and to permit the latter to escape payment because his house is completed a few days later than the contract requires would result in great injustice to the contractor, while the rule adopted fully protects the owner, and does no injustice to any one. The cases just referred to illustrate two well-settled rules of law which have been deduced from this general principle, and in accordance with which this case must be determined. They are: * * * * In contracts of merchants for the sale and delivery or for the manufacture and sale of marketable commodities a statement descriptive of the subject-matter, or some material incident, such as the time of shipment, is a condition precedent, upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract. But in contracts for work or skill, and the materials upon which it is to be bestowed, a statement fixing the time of performance of the contract is not ordinarily of its essence, and a failure to perform within the time stipulated, followed by substantial performance after a short delay, will not justify the aggrieved party in repudiating the entire contract, but will simply give him his action for damages for the breach of the stipulation. * * * It only remains to determine whether the contracts in the case at bar are the ordinary contracts of merchants for the manufacture and sale of marketable commodities or contracts for labor, skill, and materials, and this is not a difficult task. A contract to manufacture and furnish articles for the especial, exclusive, and peculiar use of another, with special features which he requires, and which render them of value to him, but useless and unsalable to others-articles whose chief cost and value are derived from the labor and skill bestowed upon them, and not from the materials of which they are made-is a contract for work and labor, and not a contract of sale. * * * Thus in Engraving Co. v. Moore, 75 Wis. 170, 172, 43 N. W. 1124, 6 L. R. A. 788, 17 Am. St. Rep. 186, where the lithographing company had contracted to manufacture a large quantity of engravings and lithographs for a theatrical manager, with special features, useful to him. only during a certain season, and they were completed and set aside in the rooms of the lithographer, and there burned before delivery to the manager, the court held that the contract was not one for the sale of personal property, but one for work, skill, and materials, because it was not the materials, but the lithographer's work of skill, that gave the value to the finished advertisements, and was the actual subject-matter of the contract, and because that work and skill, while it added the chief value to the finished articles for the especial use of the defendant, made both the articles and the materials worthless for all other purposes. The contracts in the case we are considering were not for the blank paper on which they were finally impressed; that was of small value in proportion to the value of the finished articles; they were not for the sale of anything then in existence; they were for the artistic skill and labor of the employés of the defendant in preparing the sketches and designs, transferring them upon stone, and finally impressing them upon the paper the defendant was to furnish; and they authorized the plaintiff, without other orders than the contracts themselves, and the approvals of the designs and proofs there called for, to prepare and furnish all the articles named in the contracts and to collect the contract price therefor. These contracts required the names of defendant's mills and its trade-marks to be so impressed upon all these articles that when they were completed they were not only unsalable to all others, but worthless to plaintiff for all purposes but waste paper. The contracts are evidence that on December 31, 1889, the articles contracted for would have been worth about $6,000 to the defendant, and if a few days later, when they were tendered, they were not worth so much, the defendant may recover the damages it suffered from the delay from December 31, 1889, to the date of the tender, in a proper action therefor, or may have the same allowed in this action under proper pleadings and proofs, and no injustice will result; while, if the defendant was permitted on account of this delay to utterly repudiate the contract, the plaintiff must practically lose the entire $6,000. The contracts contain no stipulation from which it can be fairly inferred that the parties intended the time of performance to be even material; indeed, they strongly indicate the contrary. They provide that a certain portion of the articles shall be furnished in two months, that the remainder of the stationery and 5,000 hangers shall be furnished in the course of the year, and the 5,000 hangers more and the vignette shall be furnished within a reasonable time after the proofs are approved by the defendant; there is no stipulation for the payment of any damages or the avoidance of the contracts on account of a failure to perform within any of the times stipulated in the contracts, and the parties themselves proceeded so leisurely thereunder that the first and only admitted request by the defendant for the delivery of any of the articles not delivered in August was on December 16, 1889. * * * In the absence of any such stipulation, or any clearly expressed intent that time should be material even, it would be clearly unjustified by the law and inequitable to hold that the plaintiff is compelled to forfeit his entire contract price on account of this trifling delay that may |